Man Mohan Singh Gujral, J. - (1.) THE plaintiff -appellant, Shrimati Bhagwanti, filed a suit for the recovery of Rs. 1,00,30. Originally the suit was only filed against Faqir Chand and Mansa Singh respondents as her claim was only against these persons, but subsequently in the course of trial the Custodian of Evacuee Properly was also impleaded and ?he plaint was amended. Though the suit was instituted as far back as the 29th March, 1954, but for some reason or the other its trial could not be brought to conclusion till the 23rd October, 1962, as during the trial a number of interim orders were assailed in revision and the proceedings were stayed by the High Court pending the disposal of those revision petitions.
(2.) FAQIR Chand respondent obtained a decree against one Maula Bakhsh and in execution of that decree certain machinery originally belonging to Maula Bakhsh was attached and sold by Court auction on the 21st April, 1948. The machinery was purchased by Faqir Chand and Mansa Singh respondents. On the 8th July, 1948, these two respondents sold that machinery to the plaintiff for a sun of Rs. 85,000. On the allegation that the machinery was evacuee property the Custodian applied to the executing Court for obtaining an order setting aside the sale, but the application was dismissed and the Custodian then filed a revision petition in the High Court. By order dated the 29th March, 1951, the High Court set aside the order of the executing Court and in pursuance of this order the Custodian obtained possession of the machinery from the plaintiff on the 4th October, 1951. For the next three years the plaintiff took various steps and approached different authorities of the Custodian Department including the Custodian -General to obtain relief, but all these attempts filed. The final order was passed by the Assistant Custodian -General on the 8th March 1954, dismissing the plaintiff's objection. Having failed to get satisfaction from the Custodian Department, the plaintiff filed the present suit claiming refund of the amount paid by her and interest from defendants No. 1 and 2. In the alternative, the plaintiff based her claim on failure of consideration and claimed compensation of the same amount.
(3.) THE suit was resisted on various grounds including that the suit was not properly valued for the purpose of Court fee and jurisdiction, that no notice under section 80 of the Civil Procedure Code was served on the Custodian, that the property was not evacuee property, that the sale could not be set aside by the High Court and that the plaintiff had no cause of action. On the pleadings of the parties numerous issues were framed. By order dated the 7th March, 1956, the trial Court directed that the following issues be tried as preliminary issues : - - (1) Whether the suit is within time ? (4) Whether the machinery auctioned by the Court was not declared as evacuee property and did not vest in the Custodian ? (5) Whether the sale of machinery was not set aside by the High Court ? (6) Whether the order of the High Court dated the 29th March, 1951, is a nullity for reasons given in the written statement ? If so, its effect ? (7) Whether the plaintiff has a cause of action ? (12) In what capacity is the plaintiff in possession of the machinery and to what effect ? By judgment dated the 17th May, 1962, the trial Court dismissed the suit finding issues Nos. 1, 4, and 7 against the plaintiff or in favour of the defendants. Under issue No. 5 and 6 it was held that the plaintiff was not bound by the order of the High Court setting aside the sale in favour of defendants Nos. 1 and 2 while under issue No. 12 it was concluded that the possession of the machinery by the plaintiff was as a lessee under the Custodian and that the attornment was voluntary and not under any lawful coercion. Being dissatisfied, the plaintiff has come up in appeal to this Court and in appeal the findings on all these issues have been challenged before us.;